40 MILITARY LAW REVIEW [Vol. 172
A DISH BEST NOT SERVED AT ALL:
HOW FOREIGN MILITARY WAR CRIMES SUSPECTS LACK PROTECTION UNDER UNITED STATES AND INTERNATIONAL LAW
DAVID L. HERMAN1
One precarious position in wartime is to be a captured soldier accused of war crimes by the victorious state. Having fallen into enemy hands, accused military war criminals face the prospect of trials for acts sometimes done in the haste and confusion of combat. Depending on the severity of their acts and the laws of the prosecuting state, the penalty may be death. Under these circumstances, it would be proper to afford those soldiers as much procedural protection as possible so that their fate does not become a preordained conclusion arising from what one U.S. Supreme Court Justice called "judicial lynchings" and "revengeful blood purges."2
The existing system of war-crimes prosecutions, with its emphasis on national-level trials, exposes these defendants to procedurally unfair trials. Although captured military personnel accused of war crimes would be protected by the Third Geneva Convention3 like any other prisoners of war (POW), the Convention's articles prefer the use of military, not civil, courts to try war crimes. Moreover, foreign military defendants, at least in the United States, do not enjoy the same array of constitutional protections as civilian defendants. The U.S. Supreme Court has held that the protections of the Bill of Rights, particularly the right to due process, do not apply to nonresident aliens. This includes non-Americans who commit war crimes overseas.4 Even the proposed International Criminal Court
(ICC) would not protect the defendants, as its complementarity provisions would rely on national courts to handle most prosecutions.
Part II of this article describes the domestic war-crimes prosecution of one foreign soldier: the trial of Japanese General Masaharu Homma for his role in one of the more infamous war crimes of World War II, the deaths of thousands of American and Filipino prisoners of war (POWs) during the Bataan Death March. Homma's trial featured questionable procedural and evidentiary rules, which his victorious adversaries hastily had created and administered. The Supreme Court's approval of the U.S. Army's methods used to convict and condemn Homma led to his execution after trial.
Part III examines the sources of authority for prosecuting soldiers like Homma for war crimes such as the mistreatment of POWs. This part describes how the U.S. Constitution, supporting U.S. statutes, the Third Geneva Convention, and other international conventions on the rules of war provide a framework for defining and prosecuting war crimes.
Part IV examines the existing and proposed systems of U.S. and international law to show how the authority to prosecute would still be misused, and how Homma would have fared no better today. These systems include the Uniform Code of Military Justice (UCMJ), the procedural provisions of the Third Geneva Convention and Protocol I to the Geneva Conventions, and the ICC.
Part V reviews an example of the most effective war-crimes prosecution to date, the International Criminal Tribunal for the former Yugoslavia (ICTY), whose establishing statute provides primacy of jurisdiction over national courts. In conclusion, the article advocates that primacy must be included in all future international criminal tribunals to instill necessary procedural protections for foreign military war-crimes suspects. Such reform is required absent additional ratifications of Protocol I or amendments to the ICC statute.
Homma and the Bataan Death March
The Bataan Death March
Shortly after the attack on Pearl Harbor in December 1941, a Japanese army of 43,000 men, commanded by Lieutenant General Masaharu Homma, landed on Luzon, the largest of the islands comprising the Philip-
pines, then a U.S. commonwealth. This army moved south toward Manila, the Filipino capital.5 The U.S. commander, General Douglas MacArthur, declared Manila an "open city"-one that was not to be defended or bombed―and soon abandoned it to the invaders. Meanwhile, most of the U.S. and Filipino soldiers retreated in January 1942 to the Bataan Peninsula.6
MacArthur incorrectly estimated that the Japanese force was larger than his own army, and he failed to realize that the amount of supplies previously stored on Bataan was insufficient to feed the Allied defenders.7 As a result, MacArthur's troops starved and failed to launch any counteroffensives to beat back the Japanese.8 President Franklin D. Roosevelt reassigned MacArthur to Australia in March, demoralizing the soldiers left behind to fight without their veteran commander.9 On 9 April 1942, 76,000 Allied troops surrendered to the Japanese army after three months of heavy attacks, starvation rations, and epidemics of malaria, dysentery, and various diseases.10
Homma now needed to clear the peninsula of his captives so that his troops could use the area as a staging point to attack the Allied fortress on the nearby island of Corregidor.11 Having anticipated the surrender of Bataan, Homma had previously ordered five staff officers to prepare a plan for evacuating the prisoners.12 On 23 March 1942, two weeks before the surrender, the officers submitted their plan, which relied on an estimate of 40,000 prisoners. This was half the number of eventual Allied POWs.13
The evacuation plan called for the movement of the Allied troops, scattered across the peninsula, to the town of Balanga, where they would assemble and receive food.14 Then the U.S. and Filipino prisoners would move thirty-one miles to San Fernando, where they would board trains and ride to another town twenty-five miles away. The prisoners were to finish
with a nine-mile walk to Camp O'Donnell, a former military base that would serve as a converted POW camp.15 The plan included several stops for food and medical treatment.16 Most prisoners would go to San Fernando on foot because the Japanese had few vehicles, most of which the Allies had previously destroyed.17 The Japanese evacuation plan generally conformed to the terms of the 1929 Geneva Convention for treatment of POWs.18 Homma's order to carry out the evacuation plan specified that the Japanese troops were to treat all POWs "in a friendly way."19
The plan was doomed to failure for several reasons. It anticipated 40,000 relatively healthy and well-fed captives. The surrendering army, however, was twice as large, reduced to starvation rations, and so wracked with disease that, according to Colonel Harold W. Glattly, a U.S. Army doctor, they were "patients rather than prisoners."20 The plan anticipated that Bataan would not fall until the end of April, and the food, medical services, and transportation would not have been ready until then.21 Two senior officers shared responsibility for assembling and moving the prisoners, but they did not collaborate on the execution of the plan.22 To make matters worse, the Japanese forces, which had been reinforced and now numbered 81,000 men, were chronically short of food and medical supplies for their own needs, let alone for those of their prisoners.23
Treatment of the Allied prisoners was inconsistent. Although some prisoners traveled in trucks or cars and suffered little, most were forced to march on foot and received little food, water, or medical aid.24 Some groups received more food or time to rest; others received less.25 Some guards treated their captives reasonably well, while others tortured the POWs or murdered them outright as punishment for surrender because the
Japanese military code considered surrender dishonorable.26 The only constant presence on the march was death: by the end of the evacuation in early May 1942, an estimated 5000 to 10,000 POWs had died.27 Another 18,000 prisoners died in the first six weeks of imprisonment at Camp O'Donnell.28
In his analysis of the Bataan tragedy and the legal aftermath, A Trial of Generals, historian Lawrence Taylor ascribed the guards' atrocities to three factors, each of which counteracted Homma's specific directive to treat the POWs humanely.29 First was the morale of the low-ranking Japanese soldiers. Having suffered almost as much as their enemies during the fighting, having seen many of their comrades die in battle, and having been trained to regard surrender as dishonorable, the Japanese soldiers sought revenge upon their now-helpless foes.30 The second factor was a shortage of Japanese officers. There were not enough officers to supervise properly all aspects of the prisoner movement.31 Because a company of infantrymen might be spread out to guard a mile-long file of captives, its commander could not supervise carefully; therefore, the captors attacked their captives with impunity.32 The third factor was moral contamination of the Japanese junior officers. Several Japanese staff officers sent from Tokyo to assist Homma incited many of Homma's subordinate officers to treat the fighting as a racial war against the United States.33 The junior Japanese officers' newly instilled racial hatred further ensured poor treatment of the Allied prisoners because Homma entrusted his junior officers with the actual supervision of the prisoners.34
Homma claimed that he was so preoccupied with the plans for the Corregidor assault that he had forgotten about the prisoners' treatment, believing that his officers were properly handling the matter. He allegedly did not learn of the death toll until after the war.35 Even Major General Yoshikate Kawane, whom Homma assigned to direct the main portion of the prisoners' march from Balanga to Camp O'Donnell, neither knew of
the atrocities nor their partial origin in the visiting staff officers' campaign of hatred.36
Shortly after the end of the march to Camp O'Donnell, Homma's troops attacked Corregidor. Corregidor's defenders and General Jonathan Wainwright...